2 firm in opposing Bergen appointee

Two lawyers who advised that it would be a conflict of interest for Paul Fader, a prominent Democratic attorney, to represent the Bergen County Improvement Authority have defended their opinions in letters sent to the Bergen County freeholders.

Attorneys Wayne Positan and Frank Holohan also sharply disputed an opinion from Fader's lawyer, who wrote that both lawyers have their own conflicts because their firms have represented hospitals in the past.

Both Positan and Holohan reaffirmed their warning that Fader's appointment could pose conflicts because of his former role as volunteer trustee for Englewood Hospital and Medical Center.

"It would be naïve to assume that Mr. Fader's long term personal commitment to Englewood Hospital would be cured or alleviated simply by his resignation from the Englewood Hospital Board of Trustees," Holohan wrote.

The letters are the latest twist in what has become a vigorous political tug of war over the appointment of Fader — a former Englewood mayor and former chief counsel to two Democratic governors — as general counsel to the authority, which serves as the county's financing arm and oversees Bergen Regional Medical Center.

The two letters were a "day late and a dollar short," Freeholder Chairman David Ganz said Friday. Ganz said he did not see them until the day after the board voted to override County Executive Kathleen Donovan's veto of Fader's appointment. Even if he had gotten the letters sooner, it would not have changed his vote, Ganz said.

"My view is a pretty simple one. Lawyers are used to building Chinese walls around conflicts," Ganz said. If a conflict arises at some point, Fader can ask that another lawyer handle the matter, Ganz said.

The five Democratic freeholders voted to override the veto by Donovan, a Republican. Fader replaced Thomas Bruinooge, a Republican who previously served on Donovan's transition team in December 2010.

Fader said there is "absolutely" no conflict of interest, particularly now that he has resigned as an Englewood Hospital trustee after nine years on its board.

"I find this laughable," he said of the two attorneys' letters forwarded to the freeholders. Fader said he thought the letters were contradictory. He said the one firm disavowed having any relevant hospital clients, while the other firm made no mention of such clients.

Fader cited the opinion drafted by his own lawyer, John McGill III, who previously served for 20 years as ethics counsel with the Office of Attorney Ethics of the state Supreme Court.

McGill wrote that the conflict posed by a scenario in which Englewood Hospital might someday bid to acquire Bergen Regional was "highly speculative and remote."

He also wrote that the two law firms that the authority turned to for an outside opinion have conflicts of interest:

"Both law firms have substantial ties to the health care industry and represent health care clients throughout the state of New Jersey."

Holohan called it a "shoot-the-messenger" approach, noting that his firm was not hired to represent the authority but rather to simply render an opinion on Fader's possible conflict.

Positan called McGill's opinion inaccurate, stating that his firm only represents one hospital currently, Preakness Healthcare Center, which is run by Passaic County.

"No one would conceivably suggest that Passaic County is a potential purchaser of BRMC," he wrote.

He also disputed McGill's claim that a member of the firm has a financial and personal interest in The Valley Hospital. The wife of the member in question works part time at the hospital in a non-administrative post, Positan wrote.

Both lawyers criticized McGill's opinion that a conflict arising out of a possible sale of Bergen Regional was too "remote" to be a concern.

Positan wrote that several people interviewed for his opinion said that Englewood Hospital would have an interest in what happens with Bergen Regional and could become a potential bidder to own or manage it.

Holohan wrote that Fader's offer to resign from the Englewood Hospital board if hired by the authority "serves as a tacit recognition of the disqualifying conflict he has." Holohan also suggested that the authority could remove any lingering doubt over the appointment by submitting the question to the state Supreme Court for an ethics review.